What Might a Judge Do? BYOD and COPE Part 2: A CRIMINAL INVESTIGATION

Last week we discussed what a Judge might do during a Civil Action when considering cell phone data. As a reminder, during this blog series, we are examining facts from the viewpoint of a court that must apply legal principles to the facts as outlined here:

‘X’ is employed by a corporation. She was issued the latest version of a cell phone by the corporation (“the corporate phone”). X had a choice between accepting the corporate phone and using it exclusively for business purposes while keeping an earlier model cell phone she owned (“the personal phone”) or merging the data from the personal phone into the corporate phone. She chose the latter because she did not want to carry two phones. When she made the choice, X signed a document by which she acknowledged that the corporate phone and all content was the property of her employer.

A CRIMINAL INVESTIGATION

Assume that X is a salesperson. She was approached by a business rival which proposed that X work for it. X had

signed a non-competition agreement and also agreed not to misappropriate trade secrets. X left the corporation to work for the rival and, when she did so, she was allowed to purchase the corporate phone. After she went to the rival her former employer found itself being outbid on contracts with prospective customers whenever it bid against the rival. The corporation went to the FBI. The FBI secured an order compelling X to turn over her former corporate phone so that the FBI could access and review text messages and email between X and the rival. However, the FBI could not access any content because the phone was encrypted. When the FBI sought to enforce the order X said she could not remember the password that she could use to unlock the phone.

What might a judge do?

A judge might do several things. First, the judge could consider whether X had a Fifth Amendment privilege not to unlock the phone because doing so might incriminate her. If the judge finds that unlocking the phone would violate the Fifth Amendment the FBI could offer X immunity for anything that it might find. The judge would then presumably order X to unlock the phone. Then, assuming that X states that she still cannot remember the password, the judge would have to decide whether X was credible. If so, the judge would presumably do nothing. If, however, the judge found X’s lapse of memory to be dubious the judge could hold X in contempt and order her taken into custody until she unlocked the phone. From that point forward X would be deemed to hold the proverbial key to the jailhouse door in her hands. Join us here next week to hear more about BYOD, X and a potential arrest and prosecution.